Naples Estates Ltd. P'ship v. Glasby

• Decision Date: 29 December 2021
• Docket Number: 2D20-1351
• Court: Court of Appeal of Florida (US)
• Parties: NAPLES ESTATES LIMITED PARTNERSHIP, Appellant, v. ROGER GLASBY, Appellee.

NAPLES ESTATES LIMITED PARTNERSHIP, Appellant, v. ROGER GLASBY, Appellee.

No. 2D20-1351

Florida Court of Appeals, Second District

December 29, 2021

Appeal from the Circuit Court for Collier County; Joseph G. Foster Judge.

Jody B. Gabel and J. Allen Bobo of Lutz, Bobo & Telfair, P.A. Sarasota, for Appellant.

Donald E. Christopher of Baker Donelson Bearman Caldwell &Berkowitz, PC, Orlando, for Appellee.

CASANUEVA, JUDGE.

The appellant, Naples Estates Limited Partnership, owns the Naples Estates Mobile Home Park. It instituted an action for damages based upon a claim for unpaid rents. Following a bench trial, Naples Estates was awarded damages of $20 130.00 and now asserts on appeal that the damage award was insufficient. Naples Estates asserts that an additional award of $4, 747.42 is due it.

PROCEDURAL HISTORY

On July 22, 2015, the underlying action was commenced in the county court upon the filing of a complaint for eviction and for damages. Subsequently, the case was transferred to the circuit court for further proceedings, including a bench trial, by order dated November 4, 2019.

For purposes of the issues raised in this appeal the relevant allegations are set forth:

4. Pursuant to an oral rental agreement and the Prospectus for Naples Estates Mobile Home Park attached hereto as Exhibit "A" (the "Prospectus"), OWNER, as landlord, leased to DEFENDANTS, as tenants, Lot #83 in the Community (the "Lot").

5. Collier Case No. 07-4646-CA, Naples Estates Limited Partnership v. Naples Estates Homeowners' Association, Inc. (the "Rent Class Action") is a related class action proceeding addressing the reasonableness of the lot rental amounts charged by OWNER for the annual rental term beginning May 1, 2007. On June 21, 2013, an order was entered in the Rent Class Action requiring all residents of the Community who have contested the lot rental amount charged by OWNER and who have refused to pay a portion of the monthly lot rental amount as defined in Section 723.003(2), Florida Statutes ("Disputed Rent"), to deposit the Disputed Rent into the court registry on or before September 9, 2013. A copy of the June 21, 2013 Court Order (the "Court Order") is attached hereto as Exhibit "B."

6. OWNER mailed a copy of the Court Order to the residents of Naples Estates on June 26, 2013. Ms. Terri Passaro, Community Manager for OWNER, executed an affidavit of service on June 26, 2013 attesting to the mailing process of the Court Order to the residents (the "Affidavit"). A copy of the Affidavit is attached hereto as Exhibit "C." The Affidavit confirms the mailing of the Court Order via the U.S. Postal Service and incorporates a copy of the bill for mailing, the documentation sent to the residents, and the bulk mailing address list for the residents.

7. DEFENDANTS have failed to deposit any of the disputed Rent into the Collier County Court Registry as required by the Court Order for the previous 48 months prior to the written demand dated June 29, 2015.

8. The total amount due and owing for DEFENDANTS' Disputed Rent pursuant to the Court Order for the previous 48 months prior to the written demand dated June 29, 2015 to the date of the filing of this Complaint is the amount of $4, 747.42. Lot rental will continue to accrue at the May 1, 2007 rental rate of $610.00 per month during the pendency of this action.

. . . .

COUNT I: EVICTION

14. A written demand for payment of lot rental amount dated June 29, 2015 (the "Demand") was sent on behalf of OWNER to DEFENANTS on June 29, 2015. A copy of the Demand and return receipt(s), if any, is attached hereto as Exhibit "D." DEFENDANTS' default has continued for more than five (5) days after delivery to DEFENDANTS of the Demand by OWNER.

. . . .

COUNT II: DAMAGES

19. OWNER claims the amount of $4, 747.42 as being due and owing for the Disputed Rent and/or damages from DEFENDANTS to the date of filing of this Complaint, and all rent and damages accruing to OWNER up to the date a final judgment in this cause is entered, plus reasonable attorneys' fees and court costs pursuant to Section 723.068, Florida Statutes.

20. As a result of DEFENDANTS' failure to pay, owner has been damaged.

Mr. Glasby filed an answer and enumerated affirmative defenses. Mr. Glasby denied the allegations set forth in paragraphs four and five. In further response to the allegations contained in paragraph five, he asserted that "GLASBY is not a party to the referenced legal action, was not served with any Court Order, and that action has never been afforded class status." Further, he denied the primary allegations set forth in the eviction count and damage count.

Additionally, Mr. Glasby asserted ten affirmative defenses. Because of their importance to the issues framed in this appeal, the following affirmative defenses are set forth as follows:

Eighth Affirmative Defense

WAIVER AND ESOPPEL

Defendant GLASBY paid rent each month to Plaintiff up through and including the month of June 2015. Plaintiff accepted each and every one of those payments without objection, reservation, or exception. Having accepted payments for those months without question, Plaintiff is now estopped to claiming any additional rent is due for those months.

Ninth Affirmative Defense

FUTURE RENT PAYMENTS

Assuming arguendo that the order in the Rents Case is valid and enforceable, it does not obligate Defendant GLASBY to pay the 46% increase in rent from July 1, 2013 going forward. The order in the Rents Case merely orders the payment into the court registry of the difference between what a resident may have paid monthly since May 1, 2007 and six hundred ten dollars. The order is silent regarding the payment of any rent increase Plaintiff might seek to impose after June 21, 2013, the date of the entry of the order.

DISCUSSION

At the outset it must be noted that the trial court did not afford this court the benefit of its factual or credibility findings.

Although there is no strict requirement that trial courts make written findings of fact, in some instances, most often when findings are required by legislative mandate, the lack of such findings could result in a remand for such findings. See S.L.V. v. Toth, 268 So.3d 801, 803 (Fla. 4th DCA 2019); Trump Endeavor 12, LLC v. Fla. Pritikin Ctr LLC, 208 So.3d 311, 312 (Fla. 3d DCA 2016).

Having recognized that neither the record on appeal nor the final judgment entered by the trial court identify its findings of fact, we are required to apply the traditional rules that govern this court's review of the trial proceedings. We now set forth the rules that guide our determination in this instance.

First, "[i]n appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error." Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). Or stated differently, "the burden is on the appellant to make reversible error appear." Snowden v. Wells Fargo Bank, 172 So.3d 506, 507 (Fla. 1st DCA 2015) (quoting Pan. Am. Metal Prod. Co. v. Healy, 138 So.2d 96 (Fla. 3d DCA 1962)).

The second rule has been articulated by this court. "A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact." Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006).

It is the function of the trial court to evaluate and weigh the testimony and other evidence in order to arrive at findings of fact to which the rules of law are then applied. The appellate court has no opportunity to observe the witnesses and thereby to judge their credibility. For this and other good reasons certain rules of review have been formulated that define and limit the appellate function.

Oceanic Int'l Corp. v. Lantana Boatyard, 402 So.2d 507, 511 (Fla. 4th DCA 1981). Further, "it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court." Id. (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976)).

The third rule is that, generally, the burden of proof in a civil action is the preponderance or greater weight of the evidence. Hack v. Janes, 878 So.2d 440, 444 (Fla. 5th DCA 2004). In its strict sense, the burden of proof "is the duty of establishing the truth of a given proposition. In civil litigation, this burden is discharged by the production of a preponderance of the evidence and does not shift during the course of a trial." In re Ziy's Estate, 223 So.2d 42, 43 (Fla. 1969).

Further, "the obligation to establish the truth of the claim by a preponderance of evidence, rests throughout upon the party asserting the affirmative of the issue, and unless he meets this obligation upon the whole case he fails." Id. (quoting Ala. Great S. R.R. Co. v. Hill, 43 So.2d 136, 137 (1949)); see also Villa Bellini Ristorante &Lounge, Inc. v. Mancini, 283 So.3d 972, 980 (Fla. 2d DCA 2019) (citing Arthur v. Unkart, 96 U.S. 118, 122 (1887) ("The burden of proof is upon the party holding the affirmative of the issue."); Meneses v. City Furniture, 34 So.3d 71, 73-74 (Fla. 1st DCA 2010) ("As a rule, the burden of persuasion is with the party who initiates the proceeding, and remains with that party to establish the material elements of recovery.").

Applying the third rule first, in this instance Naples Estates, as the plaintiff in the trial court proceeding, carried the burden of proof to establish the truth of its material element of damages. Unless and until its burden was met, the trial court does not consider the affirmative defenses pled by Mr Glasby. "An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or...